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August 7, 2010

"Private Prisons, Public Functions, and the Meaning Punishment"

The title of this post is the title of this new article by Mary Sigler now available on SSRN. Here is the abstract:

As the prison population in the United States soars, states and the federal government have come to rely increasingly on private prisons. In 2007, private detention facilities housed more than seven percent of incarcerated adults in federal and state prisons. The primary impetus for the private-prison boom of the 1980s was the belief that for-profit corporations could deliver correctional services more efficiently than could the state. One recent study found that private prisons may reduce the cost of housing inmates by as much as fifteen percent.

Some critics have questioned the validity of these findings; others contend that if private prisons achieve any cost savings, they come at the expense of inmate well-being. That is, in order to turn a profit, private prison operators skimp on personnel training and staffing; offer only minimal educational programming and vocational training; and save space by housing inmates in cramped quarters. In addition, public accountability for prison conditions is undermined to the extent that public officials must rely on reports of abuse and mistreatment from within the private prisons themselves. Finally, the profit motive creates perverse incentives to extend inmate sentences and promote criminal justice policies that yield more and longer prison sentences regardless of whether they are in the public interest.

While these important policy considerations may be reason enough to worry about the proliferation of private prisons around the world, this paper defends the position that an even more basic consideration concerns the nature and justification of legitimate punishment. In a liberal democratic polity, punishment is an inherently public function. It is inflicted for public wrongs in the name of the people themselves. Outsourcing punishment to nonpublic agents thus represents the abdication of a core state responsibility. Moreover, because retributive considerations dominate the public’s conception of criminal justice, punishment is meaningful not primarily as a means to an end. Rather, punishment constitutes justice. Delegation through privatization attenuates the meaning of punishment – for punisher and punished alike – treating justice as a mere commodity. To be sure, state-run prisons routinely rely on private providers for food service, waste management, and even medical care. But these services are commodities that have practical rather than social significance; what matters is that they are competently provided, not the identity of the provider. Central to punishment, however, is the relationship between punisher and punished, for it transforms otherwise socially objectionable conduct – such as the deprivation of liberty – into a legitimate instrument of social control. Accordingly, the institution of punishment must be, and must be seen to be, the work of public agents.

August 6, 2010

Another judicious comment from the judiciary on Judge Kopf's "Brief and Modest Proposal"

Regular readers may recall this engaging post from last week concerning providing federal sentencing data for particular judges, titled "'A Brief and Modest Proposal' ... an original essay from US District Judge Richard Kopf." That post in turn prompted a detailed response from another federal district judge, US District Judge Edmund Sargus, which is reprinted in full in this post. Both posts have generated a lot of terrific comments (see here and here), including one that I received via a cc:d e-mail from a circuit judge that I have been permitted to reprint:

Dear Ed,

I read your letter to Professor Berman in his blog. I liked what you wrote.

Here's another thought. As was the case pre-guidelines, let the probation officer get all the statistical information he/she can on sentences imposed by other federal judges on somewhat similarly situated offenders. Let the probation officer and judge visit and discuss what would be fair in the circumstances. Let it be a sentence resting on an informed discretion.

This local story provides an interesting update on the North Carolina debate and litigation over racial bias in the application of the death penalty:

The state office that defends people facing death-penalty cases has urged defense attorneys to raise a claim of racial bias in all potential capital cases, which prosecutors say will slow the justice system.

North Carolina's Racial Justice Act allows defendants to argue that racial bias played a role in their sentences. Kentucky is the only other state that permits the use of statistical evidence to try to prove jurors were biased.

Lawyers for five death row prisoners filed motions Tuesday seeking to have their death sentences converted to life in prison without parole. The state Attorney General's Office has advised North Carolina’s district attorneys to expect that all 159 inmates on death row will file motions based on the Racial Justice Act.

Of 159 convicts on death row in North Carolina, 87 are black. A recent study by researchers at the University of Colorado at Boulder and Boston’s Northeastern University concluded that a convicted killer is three times more likely to get a death sentence in North Carolina if the victim is white rather than black.

The Office of the Capital Defender wants defense attorneys to file Racial Justice motions in pending cases, regardless of the race of the defendant.

Two Wake County cases where such motions have been filed involve Joshua Stepp, a white man charged with sexually abusing and murdering his white 10-month-old stepdaughter, and Armond Devega, a black man charged in a robbery spree that left two blacks dead. "We're sort of surprised by some of the ones where there didn't appear to by anything racial about the case," Wake County District Attorney Colon Willoughby said.

Willoughby contends that sorting through statistics, jury make-up and decisions in scores of old cases will be a drag on the court system. "It just makes it more cumbersome and expensive," he said. "This is part of a plan to do away with the death penalty."

Tye Hunter, executive director of the Center for Death Penalty Litigation, a Durham-based nonprofit that assists defendants in capital cases, said there's no effort to clog the courts with appeals to effectively end the death penalty in North Carolina. "This is an opportunity for us to take a serious look at race and criminal justice," Hunter said.

He does agree with prosecutors, however, in suggesting that pre-trial Racial Justice motions be set aside to avoid bogging down potential death penalty cases. "Lawyers have been filing these motions as place holders, not knowing whether they have a meritorious claim or not," he said. "If they get the death penalty, then they can raise it in post-conviction."

Gov. Beverly Perdue, who signed the act into law a year ago, said it's important to let the racial review process work. "I would urge folks to work with the courts and with the process," Perdue said. "We're in the very new beginnings of something that nobody knew how it would work. America is being led by North Carolina."

Hunter also recommended that all of the death row appeals under the Racial Justice Act be consolidated and handled by a special judge.

August 5, 2010

The Seventh Circuit handed down today another intriguing Second Amendment opinion in which it finds unavailing an as-applied challenge to 18 U.S.C. § 922(g)(1), the federal felon-in-possession criminal prohibition. There are lots of interesting aspects of the panel's ruling in US v. Williams, No. 09-3174 (7th Cir. Aug. 5, 2010) (available here) -- including the fact that retired Justice Sandra Day O'Connor was one of the members of the Seventh Circuit panel (though she was not the author of the unaninous panel opinion).

But Williams strikes me as especially notable because the panel's emphasizes on the fact that the defendant challenging § 922(g)(1) had previously been convicted of a violent felony. And then the panel opinion throws in this very noteworthy paragraph:

And although we recognize that § 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent, that is not the case for Williams. Even if the government may face a difficult burden of proving § 922(g)(1)’s “strong showing” in future cases, it certainly satisfies its burden in this case, where Williams challenges § 922(g)(1) as it was applied to him. See Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973) (“[A] person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.”). Williams, as a violent felon, is not the ideal candidate to challenge the constitutionality of § 922(g)(1).

It seems that the panel here in Williams may be essentially urging that a better candidate in the form of a non-violent felon, take a Second Amendment run at § 922(g)(1).

Elena Kagan is now officially Justice Kagan (once sworn in)

As detailed in this AP article, the US "Senate confirmed Elena Kagan Thursday as the Supreme Court's 112th justice and fourth woman, selecting a scholar with a reputation for brilliance, a dry sense of humor and a liberal legal bent." Here are a few of the details:

The vote was 63-37 for President Barack Obama's nominee to succeed retired Justice John Paul Stevens. Five Republicans joined all but one Democrat and the Senate's two independents to support Kagan. In a rarely practiced ritual reserved for the most historic votes, senators sat at their desks and stood to cast their votes with "ayes" and "nays."...

But the two parties clashed over her nomination. Republicans argued that Kagan was a political liberal who would be unable to be impartial. Democrats defended her as a highly qualified legal scholar.

She is the first Supreme Court nominee in nearly 40 years with no experience as a judge, and her swearing-in will mark the first time in history that three women will serve on the nine-member court together.

Her lack of judicial experience was the stated reason for one fence-sitting Republican, Sen. Scott Brown of Massachusetts, to announce his opposition to her confirmation Thursday, just hours before the vote. Though calling her "brilliant," Brown -- who had been seen as a potential GOP supporter -- said she was missing the necessary background to serve as a justice.

"The best umpires, to use the popular analogy, must not only call balls and strikes, but also have spent enough time on the playing field to know the strike zone," Brown said.

Democrats said Kagan could help bring consensus to the polarized court and act as a counterweight to the conservative majority that's dominated in recent years. With her confirmation, Sen. Chuck Schumer, D-N.Y., said near the end of a three-day debate, "average Americans will be a step closer to once again having their voices heard in the highest court in the land."...

A handful of Republicans broke with their party to back Kagan. They argued that partisanship should play no role in debates over the Supreme Court and have called Obama's nominee qualified.

Still, it was clear that unlike in past decades -- when high court nominees enjoyed the support of large majorities on both sides -- party politics was driving the debate and vote on Kagan, much as it did last year when the Senate considered Obama's first pick, Justice Sonia Sotomayor, and former President George W. Bush's two nominees, Chief Justice John Roberts and Justice Samuel Alito.

UPDATE: I just noticed that over at Crime & Consequences here, Kent has this noteworthy reaction to the Kagan confirmation:

I do not expect anyone nominated by the present administration to be a positive force in criminal law, but I am more concerned about Justice Kagan than Justice Sotomayor. The latter's experience as a deputy district attorney and trial judge assured us that she had looked evil in the face and knew how bad violent criminals really are. A career spent in the ivory tower provides no such assurance. It is too easy to be blase about crime and wring your hands over the poor, unfortunate torturer-rapist-murderer when you only read the facts in a transcript or opinion and then go home to your safe, leafy neighborhood.

I hope these apprehensions prove unfounded. We will see.

And the first commentor to Kent's post, who uses the label Cal. Prosecutor, adds this spin to Kent's concerns:

Kent, did your concern extend to CJ Roberts? He never served as a trial judge and the closest he came to being a prosecutor was serving as special assistant to AG William French Smith.

Justice Scalia has spent considerable time in multiple ivory towers, also never served as a trial judge, and the closest he came to looking evil in the face was when he supported Nixon's claim to ownership of certain infamous tapes while serving with the Office of Legal Counsel for the Justice Dept.

Justice Thomas was never a trial judge and while he worked with in the Missouri AG's Office, I understand that it was in the tax division.

Justice Kennedy took over his father's private law firm and was chiefly known in Sacramento as an effective lobbyist, giver of lavish parties and drafting a state initiative on spending before going to the 9th Circuit.

I certainly would agree with you that we should have more Supreme Court Justices that had actually served in the trenches of criminal law, like Alito, Sotomayor or O'Connor. Perhaps then we would not see such ivory tower opinions like the much-lamented (by us prosecutors, anyway) Crawford case where Justice Scalia infamously "[left] for another day the any effort to spell out a comprehensive definition of testimonial". You may recall that Justice O'Connor (a former prosecutor) had a great deal to say in her dissent about that rather airy detail.

Until that day comes, I hope that you will permit an observation that your apprehension appears driven more by ideology than any lack of experience in looking evil in the face.

A comment on comments

One of my favorite real-world lawyer readers, who is also one of the most thoughtful and helpful commentors, wrote me this note via e-mail today:

Doug, is there anything you can do to eliminate comments from folks who are deterring participation on the blog? I have no enthusiasm to make a comment, knowing that some vitriolic attack will follow. Bummer, your blog is some of my favorite reading.

I trust the few bad apples that are spoiling the comments for other members of the bunch will make a real effort to play at least a bit nicer in the comments. I have very little interest in (and even less time to) police what gets said in the comments, and I know from experience that the comments can and should be a useful (and enjoyable) aspect of this blog.

I am hopeful that this comment will encourage a bit more civility in the comments. Also, I urge readers to consider using the comments to this post to express their take on whether and how the comment section of this blog adds or detracts from their reading experiences. If lots of folks say that open comments do more harm than good, I can and will shut off the blog's comment feature.

Notable discussion of the impact of civil commitment on sentencing sex offenders

The Eighth Circuit handed down an interesting little ruling in a sex offender sentencing case today in US v. Jeffries, No. 09-3377 (8th Cir. Aug. 5, 2010) (available here). These excerpts from the opinion provides the highlights of the interesting argument made by the defendant and the Eighth Circuit's analysis:

Jeffries argues that the district court violated the admonition in § 3553(a) to “impose a sentence sufficient, but not greater than necessary” when it cited the need to protect the public as the basis for sentencing him at the top end of his guideline range. Jeffries acknowledges the specific instruction in § 3553(a)(2)(C) that district courts should consider the need for the sentence imposed to “protect the public from further crimes of the defendant.” According to Jeffries, however, the court should not have given so much weight to the need to protect the public because the government has the ability to obtain a civil commitment order and indefinitely detain him after the expiration of his sentence if it establishes that he is sexually dangerous to others....

Jeffries’ argument is based on the incorrect assumption that the recently enacted civil commitment provisions shifted the responsibility for protecting the public from district courts at sentencing to the Department of Justice at the time a prisoner is released. Jeffries has cited nothing in the language of the statute or its legislative history that supports this conclusion. Rather, the new provisions are “a modest addition to a longstanding federal statutory framework, which has been in place since 1855” for the civil commitment of the mentally ill. Comstock, 130 S. Ct. at 1961....

In short, there is no reason to conclude that the provisions at issue were meant to displace a district court’s initial discretion to consider potential danger to the public in choosing a defendant’s sentence. This is particularly true given the long-standing role that such considerations have played in courts’ sentencing decisions and the absence of any indication that Congress intended for the civil commitment of sexually dangerous prisoners to have any effect on sentencing. We believe that the civil commitment statutes are best viewed as a complement to the district court’s sentencing discretion. Accordingly, we conclude that the district court did not abuse its discretion by considering the need to protect the public when it imposed Jeffries’ sentence. The 360-month sentence that the district court imposed was within the properly calculated advisory guideline range and it was not substantively unreasonable.

I am impressed with both the cleverness of the defendant's statutory argument here, as well as by the thorough and thoughtful treatment that the Eighth Circuit gives to the argument as it rejects it.

UPDATE: A helpful reader sent me this follow-up note on this basic issue and how it was addressed by another circuit court a few years ago:

On the theme of your post on the 8th Circuit's decision about the relevance of prospective civil commitment to sentencing factors, I thought you (and maybe the defendant) might be interested in the Tenth Circuit's opinion two years ago in United States v. Pinson (10th Cir. 2008) (McConnell, J.) (pp. 27-29) (available here):

The Court affirmed a large upward variance for a mentally unbalanced defendant "though not without some qualms."

"[W]e take a moment to express our concern that courts use upward variances to increase the incarceration time for those who might pose a risk to the public because of their mental health problems. When a prisoner, soon to be released, may pose a substantial risk to himself or to others, the federal civil commitment statute provides a mechanism by which the facility director can further detain the inmate until this risk is ameliorated. . . . In order to impose such long-term commitment, the government must demonstrate at a hearing, by clear and convincing evidence, that the defendant poses a risk to the public because of a mental abnormality or personality disorder that is beyond his control. . . .

When a district court enhances a sentence because the defendant’s mental illness prevents him from controlling his actions, thereby increasing the risk he poses to the public, the district court in effect circumvents the civil commitment procedure and the procedural and substantive protections that go along with it: specifically, the clear and convincing evidence standard is replaced by the lower, preponderance of the evidence standard. This is particularly troubling given that the use of § 4246 provides for evaluation of the defendant’s risk after he has received treatment during incarceration; the prediction of the risk the defendant will pose to the public upon release, made before treatment, is far more imprecise. See Note, Booker, The Federal Sentencing Guidelines, And Violent Mentally Ill Offenders, 121 Harv. L. Rev. 1133, 1144 (2008) . . .

We stop short of prohibiting courts from considering whether a defendant’s mental illness justifies an upward variance because it causes him to pose a risk to the public. But we encourage sentencing courts to consider that civil commitment procedures will be available if the defendant continues to pose a considerable risk to the public after confinement, mitigating the need for a prophylactic upward variance."

I find the Eighth Amendment to be among the most interesting and challenging provisions of the Bill of Rights to consider in the originalism/living document debate over constitutional interpretation. For this reason, I was intrigued to see this discussion of the Eighth Amendment in this intriguing New Republic review by law professor Adrian Vermeule of the books "Keeping Faith with the Constitution" by Goodwin Liu, Pamela S. Karlan, and Christopher H. Schroeder and "The Living Constitution" by David Strauss:

The Constitution prohibits “cruel and unusual punishments.” Read in accordance with the founders’ specific expectations, this would permit punishments that were unremarkable in the founding generation yet seem barbaric today—the pillory, or the gallows. But how to limit the principle that the opaque text embodies? Why not describe the principle as a requirement of “humane punishment” or even “just punishment,” thereby delegating to some committee of aging lawyers on the bench, with limited information and life experience and no philosophical or penological training, a commission to define the content of humanity and justice? Constitutional fidelity has no means to block this conclusion, which is absurd.

Why should one think that the lawyer-committee’s answers to such questions will systematically be better than the answer supplied by a majority of the legislature, composed of hundreds of representatives with diverse professional backgrounds and perspectives? It is no answer to say that each generation will work out for itself, in changing circumstances, what just punishment requires. The crux of the issue, for constitutional law, is who will speak for the current generation: the legislatures and the executive officers, or the judges.

August 4, 2010

A helpful reader alerted me to the news that the Second Circuit handed down today this amended version of its important Dovree ruling from a few months ago that reversed as too long a below-guideline sentence for a child porn offender. The same reader sent me this synopsis of what seem to be the significant aspects of the amended opinion:

Apparently, there were two general areas of changes.

First, perhaps in response to the Government's rehearing petition (which is still pending) that attacked the original decision's use of the Second Circuit's sometimes-invoked relaxed plain-error standard when sentencing is involved, the amended decision omits any reference to the relaxed standard, and simply concludes that the error in question was "plain." Relatedly, whereas the original decision stated that another error was reviewed under the normal plain-error standard, the amended decision concludes that that error in fact was preserved.

Second, the amended opinion (at 17) quotes extensively from former ENDY US Attorney Alan Vinegrad's attack on the [PROTECT Act in an issue of the Federal Sentencing Reporter], and (at 19) cites an unpublished comment by a federal defender [the Stabenow paper that has been referenced in many district court opinions when deciding to vary from the child porn guidelined]. That comment is filled with wonderful language for persons wanting to attack sentences under the kiddie-porn-possession Guidelines.

"Private Plea Bargains"

The title of this post is the title of this great forthcoming piece from my Ohio State colleague Ric Simmons, which is now available via SSRN. Here is the abstract:

This article analyzes the phenomenon of private criminal settlements; that is, settlements in which the victim or witness agrees not to report the perpetrator to the police in exchange for some consideration on the part of the perpetrator. The article first examines why these settlements occur and then determines whether or not they should be permitted, and if so, under what circumstances.

There are two different paradigms that can be used in analyzing private criminal settlements. The first paradigm, which has been used by scholars who have previously considered this issue, has been to treat these settlements as a form of blackmail. Legislatures in every state have also used this paradigm to criminalize private criminal settlements. But as the article points out, the justifications for criminalizing these agreements under a blackmail paradigm turn out to be particularly weak.

The article goes on to analyze private criminal settlements under a different paradigm, by treating them as the private analogue to public plea bargains. Using this analysis, the true cost of these agreements becomes apparent. Public plea bargains have long been criticized as providing a sort of second-class justice, but many scholars have also concluded that the process of plea bargaining brings certain benefits to the criminal justice system. The article applies the critiques of plea bargaining to private criminal settlements, and concludes that private settlements share all the drawbacks and costs of public plea bargains, while providing almost none of the benefits.

The article ends by discussing the implications of this analysis for current laws regarding private criminal settlements. It concludes that private criminal settlements should remain criminalized, but with one significant exception: settlements made between individuals who had a pre-existing relationship should be permitted.

As detailed in this Huffington Post report, which is headlined "'Just Say Now': Left-Right Coalition Launches Campaign To Legalize Pot," there is a new coaltion that is making a forceful push for marijuana legalization. The new group has taken on a name that is an intriguing riff on the famous "just say no" anti-drug campaign from the 1980s, and here some details:

A transpartisan coalition of prosecutors, judges, cops, students, bloggers and political operatives on both sides of the aisle launched a campaign Tuesday to bring an end to marijuana prohibition, focusing on ballot initiatives in 2010 and 2012. The campaign, "Just Say Now," gets its name from Nancy Reagan's iconic anti-drug slogan from the 1980s that has become synonymous with the government's black-and-white approach to drug policy.

"The stars are aligning in a very interesting way with Tea Party activists, who are generally libertarian," said Aaron Houston, head of Students for Sensible Drug Policy, on a conference call Tuesday afternoon announcing the formation of the coalition. "On the right and left it's a very popular issue."

The campaign will be backing marijuana initiatives in 2010 in Arizona, Oregon, California, Colorado and South Dakota. The group will back initiatives in Nevada and elsewhere in 2012.

Support for marijuana legalization has steadily increased over the past decade. As Mexico has descended into chaos fueled by the drug trade -- a business overwhelmingly dominated by marijuana trafficking, despite the common perception that cocaine and heroin drive the war -- public opinion has turned further sour against the drug war. With deficit concerns in the headlines and a stagnant economy refusing to create jobs, one time opponents of legalization are eyeing marijuana's tax revenue and job-creation prospects - conditions that helped repeal alcohol prohibition during the Great Depression....

The organization Law Enforcement Against Prohibition, made up of cops and prosecutors who've seen the dark side of the war on drugs, will give cover to politicians who come out in support of legalization. Its current president is Neill Franklin, a 33-year police veteran and ran anti-narcotics units with the Maryland State Police. One LEAP leader, Norm Stamper, former chief of police in Seattle, Washington, the predecessor of current Drug Czar Gil Kerlikowske. "Most police office candidates have used marijuana," said Stamper, noting the hypocrisy of the law. He said that law enforcement officials are becoming less frightened of speaking out publicly against the war on drugs.

Crooked local politician seeking sentencing help from fatherhood and Facebook

An upcoming federal sentencing for a local Pennsylvania politician convicted of taking kickbacks is raising a bunch of interesting issues. First, as detailed in this local story, the defendant is seeking leniency based on his fatherhood:

Former Luzerne County commissioner Greg Skrepenak is asking a judge to reduce his possible prison sentence based on the fact he is a single father caring for three children. Skrepenak, 40, is scheduled to be sentenced on Friday for his guilty plea to accepting a $5,000 kickback for helping a developer win entry into a tax forgiveness program.

In a motion filed Tuesday, Skrepenak’s attorney, Peter Moses, says Skrepenak is the sole caregiver for the children because their mother, his estranged wife, Carrie, suffers from drug addiction and is currently incarcerated. “The love and devotion of Mr. Skrepenak for his children is unparalleled, and the unique nature of the family of Mr. Skrepenak present specific mental and physical needs that only Mr. Skrepenak can address,” Moses said....

Skrepenak pleaded guilty in January to corrupt receipt of a reward for official action. Federal sentencing guidelines call for a sentence of 33 to 41 months in prison, but Skrepenak hopes to convince U.S. District Judge Richard P. Conaboy to impose a sentence below that range given his “extraordinary family situation.”

Federal law allows a judge to impose a sentence that is higher or lower than the suggested range if the jurist finds there are compelling reasons to do so, which can include family ties and responsibilities. Moses says that’s clearly the situation in Skrepenak’s case.

Skrepenak, a former NFL lineman, has been the sole caregiver for his children, Christian, 15, Gregory, 13, and Maria, 11 for most of their lives given their mother’s trouble with addiction. It’s important for him to be there for the children to address mental health issues, as well as physical ailments, including sleep apnea and allergies, that they suffer, Moses says.

Moses also contends a reduction is warranted to help erase a gender disparity that exists in sentences that are imposed upon male defendants compared to female defendants. “Historically, sentences for females and single female parents have statistically and significantly been less harsh than those of their male counterparts,” Moses says. “The sentence of Mr. Skrepenak, a single father of three children, should be adjusted downward then, given the need to equalize sentencing disparities among other charged individuals on the basis of gender.”...

Contacted Tuesday night, Moses said he also plans to raise other issues at Skrepenak’s sentencing, including his charitable work and commitment to the community, in hopes of further reducing his sentence. “We thought these issues were important to raise. What the likelihood of success is, I don’t know. We believed it was important to at least raise the issues,” Moses said.

Former Luzerne County commissioner Greg Skrepenak has sent a request to some of his Facebook friends to write character letters to a federal judge before he is sentenced Friday.

County Controller Walter Griffith said one of his employees received Skrepenak’s request on the Internet social networking site last weekend, prompting Griffith to issue an e-mail reminding employees that they may not view or respond to Facebook on county time....

Skrepenak’s Facebook request, issued July 30, is one paragraph:

“Many of you know (some may not) that I had to plead guilty in December to charges levied against me from the federal government arising from my political career. I made some dumb mistakes and thought people were friends when I should have separated my personal and public life. I only have myself to blame and had to hold myself accountable so my sentencing hearing is coming up on the 6th.”

He said anyone “willing” to send a character letter on his behalf should send it to Conaboy along with a copy to Moses. “Any effort is greatly appreciated! Thought and prayers are greatly appreciated too!!” Skrepenak wrote.

"Rep. Mike Rogers: Execute WikiLeaks leaker"

This title of this post is the headline of this new piece from Politico. Here is how the piece begins:

Rep. Mike Rogers (R-Mich.) believes the death penalty should be applied in the case of Army Pfc. Bradley Manning if the accused provider of nearly 80,000 secret intelligence documents to WikiLeaks is found guilty by military tribunal. Rogers made the comments Monday during an interview with the Michigan radio station WHMI, which later posted an audio file of the interview.

"The death penalty clearly should be considered here," Rogers said. "[Manning] clearly aided the enemy to what may result in the death of U.S. soldiers or those cooperating. If that is not a capital offense, I don't know what is."

The 22-year-old Manning has been named a "person of interest" in the WikiLeaks investigation and was transferred last week from Kuwait to the Marine Corps base in Quantico, Va., while the Army decides whether to press charges. The Army has yet to make any further announcements regarding the investigation or Manning's future.

August 3, 2010

An original response to "A Brief and Modest Proposal" from another US District Judge

Regular readers may recall this engaging post from last week concerning providing federal sentencing data for particular judges, titled "'A Brief and Modest Proposal' ... an original essay from US District Judge Richard Kopf." I am pleased now to be able to provide an original reponse to this original essay from another federal district judge:

Dear Professor Berman:

I write to share my views regarding a proposal to publish each year statistics which would disclose the percentage of times individual judges did, or did not, impose a sentence within the guideline range. Upon first blush, the idea may seem reasonable. Upon inspection, there are many reasons to oppose the proposal. At a minimum, such data should be understood as far more complex than what has been represented.

I note that it is hard to argue against “transparency.” I also acknowledge that most of the information involved is public record, albeit contained in individual cases. The concerns I offer are not that information on cases should be sealed or that federal judges should not be subject to criticism regarding sentencings. It is the aggregation of sentencing data that I fear will be misleading, subject to distortion, and of limited analytical value.

I give several reasons for this view. First, the proponent advocates making only a small portion of data available - information relating only to a judge’s adherence to or variance from the sentencing guidelines. In the age of electronic filings, much more information, by judge, is available. For example, with little effort, the Administrative Office of the Courts could compute a district judge’s reversal rate per year or the number of times an employer or an employee won or lost a case before a single judge. Singling out only guideline related data for disclosure is not a call for transparency. There can be much more disclosed, if that is the point.

Instead, the proposal seeks selective disclosure, by judge, with the knowledge that such information would be compiled each year. In civil cases, a statistical report by judge is issued twice a year, but only as to timeliness in the handling of cases and motions, with no reference to particular outcomes. If this proposal was adopted, for the first time, decisions made by a district judge would be statistically analyzed with regard to a potentially divisive issue. I can think of no other example in which decisions of specific district judges have been disclosed in such a manner.

Second, district judges do not select cases. When dealing with relatively small number of cases, anomalies can often occur. If I told you that a domestic relations judge gave custody or parenting rights to the mother in 95% of the cases last year, from that number alone, could you really draw any conclusions? If you looked at each case, maybe the fathers had played no parental role or other factors were at play making the decision to award parenting rights to the mother the absolute right thing to do. The statistics would give the impression of predisposition and bias. Sentencing should be focused on a unique individual and a unique crime. Defendants and crimes have infinite variations. Aggregating sentences into statistics de-emphasizes the individuality of the process.

Third, because we are dealing with relatively small numbers, the significance of the percentage of cases with departures or variances will be doubtful with most judges. Further, I have no doubt that the annual percentages for a particular judge will vary widely. Some simple math will illustrate this point. In our district, each judge sentenced roughly 60 defendants in 2009. 36.7% of these defendants received the benefit of a government motion made under U.S.S.C. § 5K1.1 or 18 U.S.C. § 3553(e) asking the Judge to impose a sentence below the guideline range. Another 15% of the defendants had a guideline range authorizing probation. The combination of these two groups is almost 50% of the cases. The remaining 28 defendants would be the only relevant basis for analyzing a judge’s adherence or deviation from the guidelines. The number is quite small. The type of offense, the backgrounds of defendants, the harm to the public can be highly variable from case to case and most certainly year to year.

To publish annual aggregate statistics relevant only as to whether a judge routinely imposes guideline sentences is an implied criticism of judicial decision making and a thinly veiled attempt to influence future sentencings. Better arguments, less intrusive upon judicial independence, are to simply leave matters as they stand (records are public but not aggregated) or open the electronic filing system to aggregation of any information requested. This way, we can use sunshine, and not a menacing searchlight, to aggregate all aspects of decision making.

Fair Sentencing Act about to alter crack sentencing ... with lots of transition issues to follow

As noted in this new Washington Post editorial, President Obama is expected to sign the Fair Sentencing Act of 2010 into law on Tuesday. As detailed in prior posts, the FSA reduces somewhat the disparity between crack and powder cocaine sentencing in mandatory minimums, it is not entirely clear how the US Sentencing Commission will adjust impacted sentencing guidelines or what cases in the pipeline will be effected by the revisions in the Act.

I imagine there will be unique the transition issues for those indicted but not yet convicted, as well as those convicted but not yet sentenced, under the old law. In addition, we will have only 90 days to wait for new guidelines from the US Sentencing Commission as well, which presents a host of related transition issues. Rather than spot the possibilities, I encourage readers to use the comments to note the transition issues they expect to be raised and litigated most frequently after the Fair Sentencing Act becomes law later today.

UPDATE: Here is a brief USA Today piece on the FSA's signing, which is headlined "Obama signs law targeting disparities in cocaine cases." Here is an excerpt:

President Obama signed a law today designed to change the way that crack and powder cocaine are handled in court. The Fair Sentencing Act is "a bipartisan bill to help right a longstanding wrong by narrowing sentencing disparities between those convicted of crack cocaine and powder cocaine," Obama said last week in a speech to the National Urban League. "It's the right thing to do."

Will litigation over California's lethal injection protocol ever end?

As detailed in this new Los Angeles Times article, there is fresh litigation concerning the latest version of California's lethal injection protocol even though the same basic litigation has been going on now for nearly five years. Here are the particulars:

A death row inmate convicted of the 1985 torture and murder of a pizza deliveryman in Glendale asked a court Monday to strike down the state's newly revised execution procedures as illegal and likely to inflict excruciating pain if used on any of California's 700-plus condemned prisoners.

The lawsuit filed by Mitchell Sims, 50, alleges that the California Department of Corrections and Rehabilitation rushed through revisions of the lethal injection procedures and deliberately sought to shut the public out of the process.

Corrections officials approved the changes one day before a May 1 deadline and sent them to the Office of Administrative Law for endorsement. That office endorsed the changes late April 30, allowing the execution plans to move forward to state and federal courts for review.

Executions have been on hold in California since early 2006, when U.S. District Judge Jeremy Fogel expressed concern that some of the 13 death sentences carried out in the state in the past two decades might have exposed prisoners to unconstitutionally "cruel and unusual punishment."

I find it truly remarkable how much time and energy has been churned and burned on this issue in California, all while the state continues to sustain the largest death row in the nation and yet still seems not all that much closer to resuming executions.

Sullivan & Cromwell is a law firm with glittering offices in a dozen cities around the world, and some of its partners charge more than $1,000 an hour. The firm’s paying clients, at least, demand impeccable work.

Cory R. Maples, a death row inmate in Alabama, must have been grateful when lawyers from the firm agreed to represent him without charge. But the assistance he got may turn out to be lethal.

When an Alabama court sent two copies of a ruling in Mr. Maples’s case to the firm in New York, its mailroom sent them back unopened [because two] associates handling Mr. Maples’s case had [left S&C and] no one bothered to tell the court or the mailroom that new lawyers there had stepped in. By the time Mr. Maples’s mother called, her son’s time to appeal had run out....

Sullivan & Cromwell has worked hard to undo the damage, but it has so far failed to persuade the courts to waive the deadline for filing an appeal. After losing in the federal appeals court in Atlanta, the firm persuaded a former United States solicitor general, Gregory G. Garre, to represent Mr. Maples in the Supreme Court.

Last month, Mr. Garre asked the justices to hear the case. The core of his argument — one that might convince a schoolchild if not a federal judge — is that Mr. Maples should not be blamed for a mistake he did not commit....

In the Maples case, Judge Glenn E. Thompson, of the Circuit Court in Morgan County, Alabama, was not willing to cut the pro bono lawyers before him any slack. He said deadlines were deadlines and ruled that a court clerk was not required to do anything to follow up when life-or-death rulings came back from Sullivan & Cromwell unopened. “How can a circuit court clerk in Decatur, Ala., know what is going on in a law firm in New York, N.Y.?” Judge Thompson asked.

An Alabama lawyer, John G. Butler Jr., also represented Mr. Maples, and there is no dispute that he received a copy of the crucial ruling. But Mr. Butler said in a sworn statement that he was Mr. Maples’s lawyer in name only, serving as local counsel because the New York lawyers were not licensed to practice in Alabama. He said he had not passed the ruling along to his co-counsel or to his client.

Nor did the court clerk think to inform the man whose life was at stake. A federal appeals court last year said that was Mr. Maples’s fault. “Maples never requested the clerk to give him personal notice in addition to his counsel,” an unsigned opinion for a divided three-judge panel of the court said.

August 2, 2010

Massachusetts partially reforms its mandatory drug sentencing laws

As detailed in this press release from Families Against Mandatory Minimums, over the weekend "Massachusetts lawmakers passed legislation that includes limited but promising reform of the state’s harsh mandatory drug sentencing laws." Here are the specifics:

Drug offenders who are serving mandatory minimum sentences at county Houses of Correction will have greater access to parole and at an earlier date. However, the bill that lawmakers voted on did not include two reforms previously endorsed by the Senate: allowing drug offenders in state prisons the same access to parole, and allowing all drug offenders to be eligible for work release programs. Under current state law, drug offenders serving mandatory minimum sentences are frequently barred from either parole eligibility or work release programs, even if such restrictions force them to leave prison without supervision or job skills....

The bill will allow drug offenders in county Houses of Correction to be eligible for parole after they serve one-half of their sentence (the same as other county prisoners who are eligible for parole), unless one or more “aggravating factors” apply: they used violence or guns when committing the drug offense, they directed the drug activities of others, or they sold drugs to minors or used minors in drug transactions. The bill applies to those who are currently incarcerated, as well as to those sentenced in the future.

Charlie Sheen cuts a plea deal to avoid any prison time for domestic violence offense

Anyone who was concerned that Lindsay Lohan got treated a bit too well by the criminal justice system now has another celebrity sentencing about which to complain. Here are all the details thanks to this new story at E! Online, which is fittingly headlined "He's No Lindsay! Charlie Sheen Pleads Guilty, Gets Sweetheart Sentence":

It might actually be really great to be Charlie Sheen. Seven months after the fact, the extremely well-paid sitcom star pleaded guilty to third-degree domestic violence for his heated Dec. 25 confrontation with wife Brooke Mueller.

And, instead of heading directly to an Aspen jail as a previous plea deal stipulated, Sheen is expected back at work tomorrow on Two and Half Men. His home base for the next 30 days will be a rehab center in Malibu, where he'll work on "behavioral modification."

There's a Pitken County employee who's going to be getting a big bouquet of flowers soon...

Once upon a time Sheen was going to spend 30 days in jail in exchange for the court dropping felony menacing and misdemeanor criminal mischief charges against him. His deal "hit a snag" in June, however, when Beverly Campbell, an employee of the county's Jail Administrative Offices, decided that the actor didn't quality for their system's work release program — which was one of the major perks of his deal.

So, after further negotiations, Sheen's attorney, Yale Galanter, somehow wrangled a 30-day stay at Promises, aka celeb rehab central, in Malibu and 36 hours of domestic violence and anger management counseling for his mischievous client. Galanter also represented Mueller in the aftermath of Sheen's arrest.

Beyond the specifics of Sheen's "sweetheart" deal here, I wonder if readers are also troubled by the notion of the same attorney representing Sheen in this criminal case and also the victim of his offense in the "aftermath of Sheen's arrest." Am I wrong to wonder if the attorney here may also be benefiting in various ways from some kind of a sweetheart deal?

"Department of Justice Releases First National Strategy for Child Exploitation Prevention and Interdiction"

The title of this post is the headline of this new press release from the US Department of Justice. Here is how the release starts:

Attorney General Eric Holder today announced that the Department of Justice released its first-ever National Strategy for Child Exploitation Prevention and Interdiction. The strategy also provides the first-ever comprehensive threat assessment of the dangers facing children from child pornography, online enticement, child sex tourism, commercial sexual exploitation and sexual exploitation in Indian Country, and outlines a blueprint to strengthen the fight against these crimes. The strategy builds upon the department’s accomplishments in combating child exploitation by establishing specific, aggressive goals and priorities and increasing cooperation and collaboration at all levels of government and the private sector.

As part of the overall strategy, the U.S. Marshals Service is launching a nationwide operation targeting the top 500 most dangerous, non-compliant sex offenders in the nation. Additionally, the department will create a national database to allow federal, state, tribal, local and international law enforcement partners to deconflict their cases with each other, engage in undercover operations from a portal facilitated or hosted by the database, share information and intelligence and conduct analysis on dangerous offenders and future threats and trends. The department also created 38 additional Assistant U.S. Attorney positions to devote to child exploitation cases, and over the coming months will work to fill the vacancies and train the new assistants in this specialized area.

"Although we’ve made meaningful progress in protecting children across the country, and although we’ve brought a record number of offenders to justice in recent years, it is time to renew our commitment to this work. It is time to intensify our efforts," said Attorney General Holder. "This new strategy provides the roadmap necessary to do just that – to streamline our education, prevention and prosecution activities; to improve information sharing and collaboration; and to make the most effective use of limited resources. Together, we are sending an important message – that the U.S. government, and our nation’s Department of Justice, has never been more committed to protecting our children and to bringing offenders to justice."

"Thanks to law enforcement operations like Operation Nest Egg and Operation Achilles, the department and our law enforcement partners have brought thousands of offenders to justice in the last year. But this progress is only a start," said Acting Deputy Attorney General Gary G. Grindler. "Tangible steps outlined in the National Strategy will bring our fight to the next level."

For more of the particulars, a 280-page report to Congress details this "National Strategy to Combat Child Exploitation, Prevention and Interdiction" and is available at this link. Notably, I found relatively little discussion of sentencing issues in this huge document, though the report does include many anecdotal reports of long sentences imposed on some of the worst child sex offenders.

Are we ready for decades of "Roberts v. Kagan"?

The question in the title of this post is inspired by this interesting commentary from Dahlia Lithwick at Slate, which asks "Will there be friction between the chief justice and Elena Kagan on the Supreme Court?". Here is how the piece starts and ends:

Anyone who watched Elena Kagan's performance before the Senate judiciary committee last month saw that under the bright lights of public scrutiny, she is quick-witted, conversational, and rarely cowed. She's funny and charming, but she's not real big on deference. And so one question that lingers, as the former solicitor general prepares to join the highest court in the land: Will those qualities help or hurt Elena Kagan in the darkened marble halls of the Supreme Court?

Kagan already has some history at the court. And it didn't go unremarked by court watchers last term that Kagan's six outings before the Roberts Court as President Obama's solicitor general were sometimes uneasy. Some of us suggested that Kagan — who'd never argued a case until she argued the blockbuster Citizens United campaign finance case last September — was still just finding her footing at the court. Others observed that many of the justices, most notably Chief Justice John Roberts, appeared perpetually exasperated by her....

Even if the slings and arrows of oral argument are readily put behind them come October, Kagan and Roberts will still be worth watching in the coming years precisely because they make up two sides of the same coin: They are savvy, ambitious, and brilliant, as well as charming, outgoing, and persuasive. Each of them swanned his or her way through the confirmation hearings with smiles and jokes. Each masks strongly held views under a casual, easygoing demeanor. As Kagan proved at her confirmation hearings, she isn't one to defer to authority; she'd rather push back and win or lose it on the merits. Roberts is precisely the same. That may have been a recipe for disaster when Kagan and Roberts were on opposite sides of the same bench. But it becomes an even more fascinating pairing once they're both on it.

As the title of my post spotlights, what makes this forthcoming battle(?) so interesting is the likelihood that it will be waged for decades. Barring illnesses or surprisingly early retirements, we can and should expect Chief Justice Roberts and Elena Kagan to be serving together on the Supreme Court for 25 years and probably longer. How they interact and each seek to shape constitutional jurisprudence is going to be a very long-running (and I hope very interesting) legal story.

Relatedly, I think we have already seen a bit of Alito v. Sotomayor, as SCOTUSblog charts show a high level of disagreement between the two newest Justices during their first year together. Because both Justices are products of Princeton University, Yale Law School, prosecutor offices and long circuit service, their different judicial philosophies despite similar professional backgrounds is also worthy of examination and reflection.

Most broadly, it is so interesting that the quartet of CJ Roberts and Justices Alito, Kagan, and Sotomayor are likely to be key shapers of constitutional jurisprudence for the first half of the 21st Century. Given just how constitutional jurisprudence dramatically changed from 1950 to 2000, it is fun to speculate whether and how this quartet will be able or eager to shape constitutional jurisprudence in the half-century from 2000 to 2050.

"Lindsay Lohan Leaves Jail, Enters Rehab"

After 13 days in jail, Lindsay Lohan is taking her next steps; 12, to be precise. The actress was released from Los Angeles' Lynwood Correctional Facility today at 1:35 a.m. PT after serving 13 days of a 90-day sentence for violating her 2007 probation. Lohan was taken straight into a rehabilitation program, according to the L.A. County Sheriff's Department.

She will be treated for bipolar disorder and an addiction to amphetamines during her court ordered 90 days in rehab, according to TMZ.com. Lohan's rehab center of choice is a facility operated by the University of California at Los Angeles Hospital System in West Los Angeles, TMZ and Radaronline.com reported.

For Lohan, rehab facilities have almost served as a second home. She first admitted herself to the Wonderland Center in January 2007 and spent 30 days there. After racking up a DUI arrest in May of that year, she checked into the celebrity-friendly Promises Treatment Center for 45 days.

A second DUI arrest in 2007 sent Lohan to Utah's Cirque Lodge Treatment Center, where she famously staged a photo shoot with OK! magazine, which distributed pictures of her practicing yoga on the lawn and riding horseback, presumably sober.

This time around, Lohan was hoping to catch up with her family before locking down in rehab, according to her lawyer. "I'm hoping she will have time to spend with her family before she goes to rehab," Shawn Chapman Holley told reporters Sunday. "She is trying to comply with the court's orders, but she should be able to have 24 hours at home."

Time free was not to be for the 24-year-old starlet [apparently, the judge refused a day of free time before the start of rehab].

UPDATE: I just saw that MTV here poses the question of the day for LiLo fans, "Lindsay Lohan's Rehab Care Package: What Would You Put Inside?"

A helpful reader altered me to this lengthy article from the Sacremento Bee, headlined "The Public Eye: California prisoners' rights often trampled," that reports on how guards have abused prisoners through disciplinary hearings. The piece, which ran on Sunday's front page, also included the graphic (reprinted here) with lots of interesting data on charges against prisoners in five of the larger states in the nation. Here is how the Sacremento Bee report gets started:

The prison official assured his warden in an e-mail that everything was set: A group of 77 inmates accused of interfering with officers would be found guilty, no matter what. Disciplinary hearings – required proceedings where inmates can defend themselves with witnesses and evidence – had not yet taken place at North Kern State Prison.

Yet, in the April e-mail obtained by The Bee, acting Associate Warden Steven Ojeda promised to provide the hearing officers –- lieutenants he supervised –- "with direction prior to the hearings and ensure they understand to hold all of these inmates accountable."

Leaving nothing to chance, Ojeda prescribed punishments, too: loss of good-behavior credit and visiting privileges, threat of a term in one of the prison system's security housing units – called "the hole" by prisoners – and other serious penalties.

By acting as judge and jury, Ojeda fit a pattern, a Bee investigation has found, that suggests widespread suppression of inmates' rights to contest allegations by guards or pursue claims of mistreatment.

Current and retired officers, prisoners and parolees allege that correctional officers and their superiors routinely file bogus or misleading reports, destroy or falsify documentation of abuses, and intimidate colleagues or inmates who push back.

Sources with firsthand knowledge called the problem pervasive, offering dozens of examples. Even if the allegations are valid for a fraction of cases, thousands of prison terms could have been extended improperly at vast cost to taxpayers.

August 1, 2010

"Prosecutor looks back on 3 decades of battling drugs"

Assistant U.S. Attorney John McCann has given half his life to prosecuting criminals, and for most of them he's focused on illegal drug crime. The veteran prosecutor has been assigned to the U.S. Middle District Court here since 1992, but as July came to an end, so did his career.

McCann's retirement leaves hundreds of drug dealers still behind bars, serving prison sentences and not out preying on society. McCann didn't keep count over their numbers, but conservatively he estimates the number of his successful prosecutions at somewhere around 500 cases -- most of them ending with guilty pleas rather than jury verdicts....

Prosecuting drug cases is unpleasant work and the drug problem remains a big problem for society. McCann believes that when he puts dealers out of business, even temporarily, it increases the odds someone out there who is tempted to try drugs for the first time won't able to make their first buy and may not destroy their life....

"Almost all (his cases have involved) multi-defendants (involved with) drug organizations," he said, admitting that no matter how many dealers get sent away, the drug trade goes on because of the public's appetite for illegal substances.

The drugs in vogue change with the times. In the early 1980s, powder cocaine was popular, but by the late 1980s crack cocaine became the rage and brought with it first ultra-violent Jamaican gangs known as "posses" and then home-grown gangs such as the Bloods.

The one constant is that, no matter who is supplying them, drug dealers remain and bring with them violence and contempt for authority. Hard core dealers hate the police and prosecutors. "Once they go to jail, they hate (and blame) their lawyers ... even though the evidence against them is overwhelming," McCann said.

The most dangerous and deadly drug is heroin, according to McCann, especially now that it's available in purer form. Current-day heroin is at times more dangerous than the heroin sold three decades ago, he said, and it's everywhere from cities to small towns and even rural areas.

The veteran prosecutor believes it is "the biggest threat" and its usage has been "epidemic" for more than a decade. McCann said he wishes the media and lawmakers would pick up on the dangers of heroin. "Heroin is the most addictive drug out there," he said, and is even more addictive and deadly, the younger the individual is who uses it....

"The penalties for heroin need to be hyped up. The guidelines are too low." One packet of heroin which is about 200th of a gram can kill someone if they use it all and have never done the drug before, he said However, prosecutors need to link at least 5,000 packets to a defendant under today's sentencing guidelines to get a mandatory minimum sentence of five years. By comparison, 50 grams of crack cocaine can get a dealer a 10-year mandatory minimum.

When he began taking drug cases, McCann said he believed he and the law enforcement professionals he worked with could have an impact, but as time passed he had to accept the fact that their impact could be only one person at a time. All they can really do is put away as many dealers as possible, he said....

"Law enforcement has done its job in keeping the community from being overrun," he said. "Without them, drug use would be much more widespread." "It will never be eliminated," he added, "until somebody comes up with a way to stop the insatiable desire this country has for illegal drugs."

The second piece is by Linda Greenhouse, and it spotlights that it has now been "nearly three months since the [Supreme Court] “invited” — that is to say, ordered — Solicitor General Elena Kagan to 'express the views of the United States' on whether laws that take away the right to vote from people in prison or on parole can be challenged under the Voting Rights Act as racially discriminatory." She also concludes an effective discussion of this potent issue with these important insights:

But while the justices have handed the administration a burden, they have also provided an opportunity, as the court’s agenda-setting process occasionally does by prompting other government institutions to confront issues that might more easily go unaddressed. It is an opportunity for public education, for engagement with a painful issue, for leadership.

Given what we have seen from the Obama administration on the very toughest and most politically fraught criminal justice issues, I am not holding my breath for leadership on the issue of felon disenfranchisement. Nevertheless, Linda Greenhouse's astute commentary reminds us all of an issue worth watching closely as the fall SCOTUS season draws slowly nearer. (I believe the Justices start Two-A-Days in a few weeks after they all get back from Europe, and I suspect that Justice Sotomayor is already looking forward to having a new rookie in SCOTUS training camp to carry the pads and helmets of all the veterans after practices.)